Citation Nr: 0629538
Decision Date: 09/18/06 Archive Date: 09/26/06
DOCKET NO. 03-08 559 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to service connection for right wrist
disability.
2. Entitlement to an increased (compensable) evaluation for
left wrist disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. W. Loeb
INTRODUCTION
The veteran served on active military duty from August 1980
to August 1983.
This case was remanded by the Board of Veterans' Appeals
(Board) in January 2004 to the Department of Veterans Affairs
(VA) Regional Office (RO) in Detroit, Michigan for additional
development.
FINDINGS OF FACT
1. A disability of the right wrist is not shown to be due to
service or to service-connected disability.
2. Left wrist dorsiflexion is 40 degrees and palmar flexion
is 80 degrees.
CONCLUSIONS OF LAW
1. Right wrist disability was not incurred in or aggravated
by active military duty, and is not proximately due to, or
the result of, a service-connected disorder. 38 U.S.C.A.
§§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.3033, 310
(2005).
2. The criteria for a compensable evaluation for left wrist
disability have not been met. 38 U.S.C.A. §§ 1155, 5103A,
5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic
Code 5215 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initial Considerations
The Board has given consideration to the provisions of the
Veterans Claims Assistance Act of 2000 (VCAA). See
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002 & Supp. 2005). Regulations implementing the VCAA
have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a) (2005).
VA has a duty to notify the claimant of any information and
evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi,
16 Vet. App. 183 (2002). After having carefully reviewed the
record on appeal, the Board has concluded that the notice
requirements of the VCAA have been satisfied with respect to
the issues decided herein.
In August 2002, the RO sent the veteran a letter, with a copy
to her representative, in which she was informed of the
requirements needed to establish entitlement to an increased
evaluation. In October 2004, the RO sent a letter, with a
copy to her representative, in which she was informed of the
requirements needed to establish entitlement to an increased
rating and service connection. In accordance with the
requirements of the VCAA, the letters informed the veteran
what evidence and information she was responsible for and the
evidence that was considered VA's responsibility. The
letters explained that VA would make reasonable efforts to
help her get additional evidence, but that she was
responsible for providing sufficient information to VA to
identify the custodian of any records. No additional private
medical evidence was received from the veteran.
The duty to notify includes informing the veteran that she
must send in all evidence in her possession pertaining to her
claim. 38 C.F.R. § 3.159(b)(1). The October 2004 letter
said "[i]f there is any other evidence or information that
you think will support your claim, please let us know. If
you have any evidence in your possession that pertains to
your claim, please send it to us." The veteran was not
informed of the applicable regulations on disability ratings
and effective dates if either of her claims was granted, as
required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006). However, since the veteran's claims for service
connection for right wrist disability and for a compensable
rating for service-connected left wrist disability are being
denied, no disability rating or effective date will be
assigned, so there can be no possibility of any prejudice to
the veteran.
VA has a duty to assist the claimant in obtaining evidence
necessary to substantiate a claim. The VCAA also requires VA
to provide a medical examination when such an examination is
necessary to make a decision on the claim. 38 U.S.C.A.
§ 5103A(d); 38 C.F.R. § 3.159. The Board notes that VA
examinations were conducted in September 2002 and a medical
opinion was obtained in October 2004.
The Board concludes that there is sufficient medical evidence
on file on which to make a decision on the issues addressed
herein. There is no indication in the record that additional
evidence relevant to the issues decided herein is available
and not part of the claims file. The veteran has been given
ample opportunity to present evidence and argument in support
of her claims. The Board additionally finds that VA has
complied with general due process considerations. See
38 C.F.R. § 3.103 (2005).
Finally, to the extent that VA has failed to fulfill any duty
to notify and assist the veteran, the Board finds that error
to be harmless. Of course, an error is not harmless when it
"reasonably affect(s) the outcome of the case." ATD Corp.
v. Lydall, Inc., 159 F.3d 534, 549 (Fed.Cir. 1998). In this
case, however, as there is no evidence that any failure on
the part of VA to further comply with the VCAA reasonably
affects the outcome of this case, the Board finds that any
such failure is harmless. Mayfield v. Nicholson, 19 Vet.
App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328
(Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006).
Service Connection Claim
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. § 1131; 38 C.F.R. §
3.303(a). Service connection may also be granted for any
disease initially diagnosed after service, when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R.
§ 3.303(d).
In order to establish service connection for the claimed
disorders, there must be medical evidence of a current
disability; medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a
disease or injury; and medical evidence of a nexus between
the claimed in-service disease or injury and the current
disability. Hickson v. West, 12 Vet. App. 247, 253
(1999).
Service connection may also be granted for disability that is
proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310(a). Additional
disability resulting from the aggravation of a nonservice-
connected condition by a service-connected condition is also
compensable under 38 C.F.R.
§ 3.310(a). Allen v. Brown, 7 Vet. App. 439 (1995).
In order to prevail on the issue of entitlement to secondary
service connection there must be (1) evidence of a current
disability; (2) evidence of a service-connected disability;
and (3) medical nexus evidence establishing a connection
between the service-connected disability and the current
disability. See Wallin v. West, 11 Vet. App. 509, 512
(1998).
The veteran contends that she has a right wrist disability
secondary to service or to her service-connected left wrist
disability.
The veteran's service medical records reveal a left wrist
disability due to an automobile accident in service but no
notation of a right wrist disorder. The initial evidence of
a right upper extremity disability was not until May 2002,
which is many years after service discharge, when the veteran
complained of right hand pain and carpel tunnel syndrome was
diagnosed. On VA examination in September 2002, the
examiner, who had not reviewed the claims file, diagnosed an
old chip fracture of the right wrist, based on x-ray studies,
and concluded that the condition was likely related to active
duty. However, this same examiner concluded after reviewing
the claims file in October 2004 that the veteran's current
right wrist disability is not caused or aggravated by either
service or a service-connected disability because the service
medical records, including the records of treatment after the
automobile accident in July 1981, do not show any fracture of
the right wrist and she was not diagnosed with any condition
of the right wrist or forearm that could be aggravated by her
service-connected disabilities either before or after service
discharge.
The examiner noted in October 2004 that the September 2002
opinion was based on the veteran's subjective history, which
was not supported by the service medical records. As the
October 2004 VA nexus opinion against the claim supersedes
the September 2002 nexus opinion in support of the claim, the
Board finds that all of the elements required for entitlement
to service connection for a right wrist disability on either
a direct or secondary basis have not been shown, i.e., there
is no longer any competent medical evidence supporting a
nexus. All of the competent medical evidence addressing the
issue is against there being any nexus. Consequently, a
preponderance of the evidence is against service connection
for a right wrist disability and the claim is denied.
With respect to the veteran's written contentions, as noted
above, the veteran is not competent to render a probative
opinion on a medical matter, such as whether there is a
medical relationship between a claimed disability and service
or a service-connected disorder. Espiritu v. Derwinski, 2
Vet. App. 492, 495 (1992); Grottveit v. Brown, 5 Vet. App.
91, 93 (1993).
Because the preponderance of the evidence is against the
veteran's claim for service connection for right wrist
disability, the doctrine of reasonable doubt is not for
application. See 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49, 55-57 (1990).
Increased Rating Claim
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R.
Part 4 (2005). The percentage ratings contained in the
Schedule represent, as far as can be practicably determined,
the average impairment in earning capacity resulting from
diseases and injuries incurred or aggravated during military
service and the residual conditions in civil occupations. 38
U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2005). Separate
diagnostic codes identify the various disabilities.
In considering the severity of a disability it is essential
to trace the medical history of the veteran. 38 C.F.R.
§§ 4.1, 4.2, 4.41 (2005). Consideration of the whole
recorded history is necessary so that a rating may accurately
reflect the elements of disability present. 38 C.F.R. § 4.2;
Peyton v. Derwinski, 1 Vet. App. 282 (1991). In considering
the severity of a disability it is essential to trace the
medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41
(2005). Consideration of the whole recorded history is
necessary so that a rating may accurately reflect the
elements of disability present. 38 C.F.R. § 4.2; Peyton v.
Derwinski, 1 Vet. App. 282 (1991). However, where
entitlement to compensation has already been established and
an increase in the disability rating is at issue, which is
the situation with respect to the veteran's lumbosacral
strain, the present level of disability is of primary
concern. See Francisco v. Brown, 7 Vet. App. 55 (1994).
The Rating Schedule provides for the assignment of a 10
percent evaluation, and no higher, for limitation of wrist
motion of either upper extremity when there is dorsiflexion
less than 15 degrees or when palmar flexion is limited in
line with the forearm. 38 C.F.R. § 4.71a, Diagnostic Code
5215 (2005). A rating greater than 10 percent is provided
for limitation of motion of the wrist only in cases where
ankylosis of the joint is present. 38 C.F.R. § 4.71a,
Diagnostic Code 5214 (2005).
Normal motion of the wrists involves 70 degrees of
dorsiflexion, 80 degrees of palmar flexion, 45 degrees of
ulnar deviation, and 20 degrees of radial deviation.
38 C.F.R. § 4.71, Plate I (2005).
Where the Rating Schedule does not provide a zero percent
evaluation for a diagnostic code, a zero percent evaluation
shall be assigned when the requirements for a compensable
evaluation are not met. 38 C.F.R. § 4.31 (2005).
A May 1984 rating decision granted entitlement to service
connection for recurrent sprain of the left wrist and
assigned a 10 percent evaluation effective August 27, 1983.
An August 1986 rating decision reduced the 10 percent rating
for left wrist disability to a noncompensable rating,
effective November 1, 1986.
The medical evidence of record reveals that x-rays of the
veteran's left wrist on file do not report any significant
abnormality, including on VA examinations in May and
September 2002. When examined in September 2002,
dorsiflexion of the left wrist was 40 degrees without pain
and palmar flexion was 80 degrees without pain. It was noted
that movement and strength of the left hand were limited by
pain and lack of endurance following repetitive use. There
was some edema over the volar surface of the left wrist.
Grip strength of the left hand was 4/5. According to the
October 2004 report from the VA examiner who evaluated the
veteran in September 2002, the left hand pain and lack of
endurance noted in September 2002 was attributable to the
veteran's nonservice-connected carpel tunnel syndrome, which
was diagnosed long after service discharge, and not to her
service-connected left wrist disability. Based on the above
findings, motion of the left wrist is significantly greater
than required for a compensable evaluation under Diagnostic
Code 5215.
An increased evaluation can, as noted above, also be assigned
for a disability rated for limitation of motion under the
provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5215, to
include consideration of loss of functional use and
limitation of motion due
to pain. See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v.
Brown, 8 Vet. App. 202 (1995). It was, however, concluded by
the VA examiner in October 2004 that the veteran's left wrist
problems with pain and lack of endurance following repetition
were due to her nonservice-connected carpel tunnel syndrome
of the left wrist and not to her service-connected left wrist
disability. Consequently, a compensable evaluation is also
not warranted for service-connected left wrist disability
based on the factors discussed in DeLuca.
Ordinarily, the Schedule applies unless there are exceptional
or unusual factors, which would render application of the
Schedule impractical. See Fisher v. Principi, 4 Vet. App.
57, 60 (1993). An extraschedular disability rating is
warranted upon a finding that "the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization that would render impractical the
application of the regular schedular standards." 38 C.F.R.
§ 3.321(b)(1) (2005). In this regard, the schedular
evaluations in this case are not inadequate. A compensable
rating is provided in the rating schedule for certain
manifestations of the service-connected left wrist
disability, but the medical evidence reflects that those
manifestations are not present in this case.
Moreover, the Board finds no evidence of an exceptional
disability picture. The veteran's upper extremity problems
are primarily due to nonservice-connected carpel tunnel
syndrome and not to service-connected left wrist disability.
Additionally, range of motion of the left wrist in September
2002 included 40 degrees of dorsiflexion and 80 degrees of
plantar flexion without pain. The evidence does not show
that the service-connected left wrist disability "markedly"
interferes with employment. The evidence also does not show
that the veteran has been frequently hospitalized due to his
service-connected left wrist disability. Thus, the RO's
failure to document its consideration of this section was not
prejudicial to the veteran.
The Board considered the doctrine of reasonable doubt in
reaching the above decision, however, as the preponderance of
the evidence is against the veteran's claim for a compensable
evaluation for service-connected left wrist disability, the
doctrine is not for application. Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
ORDER
Entitlement to service connection for right wrist disability
is denied.
Entitlement to a compensable evaluation for service-connected
left wrist disability is denied.
____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs